CONSTITUTIONAL CONVENTION 



BULLETIN NO. 3 


The Amending Article of the 
Constitution 


Compiled and Published 


LEGISLATIVE REFERENCE BUREAU 

Springfield, Illinois 





I 




CONSTITUTIONAL CONVENTION 


BULLETIN NO. 3 


The Amending Article of 
the Constitution 



Compiled and Published 
By the 

III;-- LEGISLATIVE REFERENCE BUREAU 

H 

Springfield, Illinois 


[Printed by authority of the State of Illinois.] 


<r- 




ScHNEPP & Barnes, Printers 
Springfield, III. 

1919. 


26262—IM 


n. «f i), 

m 22 







LEGISLATIVE REFERENCE BUREAU. 


Governor Frank O. Lowden, Chairman. 
Senator Edward C. Curtis, Grant Park. 
Senator Richard J. Barr, Joliet. 
Representative Edward J. Smejkal, Chicago. 
Representative W illiam P. Holaday, Danville. 


E. J. Verlie, Secretary. 

W. F. Dodd, in charge collection of data for 
constitutional convention. 





TABLE OF CONTENTS. 


I. Summary .171 

II. Illinois Experience.173 

Historical account.173 

Amending clause of the constitution of 1870.174 

Limitations upon the proposal of amendments.175 

Legislative proposal of amendments.176 

Popular vote required for the adoption of amendments. .177 
Constitutional convention under the constitution of 1870.179 
Relation between two methods of constitutional alteration 179 

Use of the amending clause in Illinois since 1870.180 

Suggested changes in details of present amending clause. 181 

III. Amending Methods in Other States.183 

Limitations upon submission of constitutional amendments. 185 
Legislative action in submitting constitutional amendments. 186 

Proposal by popular initiative.187 

Popular vote required for the adoption of amendments.. . .188 

IV Revision of Constitution Through Convention.190 

V. Analysis and Conclusions.. .193 

Use of the initiative.195 

Relation between the constitution and statutes.195 

Conclusion .197 

Appendix. 

1. Illinois Constitution of 1870, Art. XIV.-.199 

2. Chicago Bar Association Amendment.200 

3. Public Policy Questions, 1919.200 

4. Proposal of Chicago Woman’s Club.200 

5. Tentative draft of combination of initiative and legis¬ 

lative proposal of Amendments.202 

6. Constitution of Michigan, Art. XVII.204 



























I. SUMMARY. 


Constitutional change in Illinois is extremely difficult and in this 
respect Illinois ranks with a small group of states which make con¬ 
stitutional amendments difficult if not impossible. 

As suggested in this pamphlet, it is desirable to keep temporary 
details out of the constitution. However, the state constitutional devel¬ 
opment in this country since 1850 has been toward placing a greater 
amount of detail in the constitutional text. If details are to be placed 
in the constitutional text, it is of course necessary that some provision 
be made for easy alteration of such detail when it has been outgrown or 
when change becomes necessary. Illinois constitutions of 1848 and 
1810 have contained a large amount of detail but have not provided a 
ready riieans for prompt alteration of this detail. 

In Illinois, as in all of the other states except New Hampshire 
and probably Rhode Island, two methods of constitutional alteration 
exist: (a) alteration through the assembling of a constitutional con¬ 
vention, and (b) alteration through specific proposal by the repre¬ 
sentative legislature or by the popular initiative. In planning any 
amending clause for Illinois care should be taken that the two meth¬ 
ods of constitutional alteration are considered together. 

A constitutional convention is a cumbersome piece of govern¬ 
mental machinery intended for use only in case a complete revision 
of the constitution is desired or in case matters of fundamental im¬ 
portance are to be dealt with. It is for this reason that the states 
have provided other methods of constitutional change for matters of 
less fundamental importance. ' New Hampshire, however, has ad¬ 
hered to the plan of constitutional conventions for the proposal of all 
changes, and provides for a popular vote upon the holding of such a 
convention at the end of each seven year period. Constitutional con¬ 
ventions have been assembled in New Hampshire in 1902, 1912, and 
1918-19. The provisions for constitutional amendment through legis¬ 
lative proposal in the Illinois constitution of 1848 were so cumber¬ 
some that a constitutional convention was substantially the only 
method for changing a mass of temporary detail which almost im¬ 
mediately required change. It was for this reason that a constitu¬ 
tional convention was assembled in 1862, and when the work of this 
convention was rejected another convention became necessary in 
1869-70. It should not be necessary to assemble constitutional con¬ 
ventions except at long intervals, but the pressure for the assembling 
of such a convention will necessarily be great if the method provided 
for specific amendment is not relatively simple. 

The Illinois constitution of 1870 makes the specific amendment 
of the present constitution difficult. This difficulty is occasioned not 
so much by any one thing as by the fact that several provisions of the 
present amending clause unite to present obstacles to change. The 
present constitution provides that (a) the general assembly shall have 



no power to propose amendments to more than one article at the same 
session nor to the same article oftener than once in four years, (b) 
that two-thirds of all members elected to each of the two houses must 
concur in order to propose a constitutional amendment, (c) that pro¬ 
posed amendments shall be approved by a majority of the electors 
voting at a general election. 

A plan which would probably meet all requirements would be that 
of making the assembling of a constitutional convention relatively 
difficult, but of making the proposal of specific amendments relatively 
easy. 

In a pamphlet on the initiative and referendum there is a rather full 
discussion of the initiative as applied to constitutional amendments. 
Some matter relating to the initiative as applicable to constitutional 
amendments appears also in this pamphlet. If the initiative for consti¬ 
tutional amendments is to be adopted, the easier process of specific 
amendment will of course include two methods of proposing consti- 
tional changes. 

In the preparation of this pamphlet a table of constitutional 
changes proposed and adopted in all of the states since 1900 has been 
prepared. Some of the statements in this pamphlet are based upon 
this material. It has seemed unnecessary to publish these tables, but 
they will be available for any one desiring to analyze the operation of 
amending methods in this and other states. 

In Bulletin No. 1 an extended review will be found of constitu¬ 
tional changes which have taken place since 1900. Seven new con¬ 
stitutions have been adopted since 1900: Alabama (1901), Virginia 
(1902), Oklahoma (1907), Michigan (1908), Arizona (1911), New 
Mexico (1911) and Louisiana (1913). Proposed new constitutions 
have been rejected in Connecticut (1902, 1907) New York (1915) 
and Arkansas (1918). Constitutional conventions in Massachusetts 
(1917-19), New Hampshire (1902, 1912) and Ohio (1912) submitted 
proposals of amendment rather than complete new constitutions. 

Since 1900, more than fifteen hundred amendments have been 
proposed in the forty-eight states, of which about nine hundred have 
been adopted. Of this number, one hundred and fifty were submitted 
in California, one hundred and thirty-four in Louisiana and eighty- 
eight in Oregon. 

California has a detailed constitution (which is steadily becoming 
more detailed), and has a long established practice of adopting fre¬ 
quent constitutional changes. Eighty-four of the one hundred and 
fifty amendments in this state were submitted before the initiative 
was available for this purpose, and of the sixty-six submitted in the 
period 1912-1918, fifty-one were proposed by legislative action, so 
that the popular initiative can hardly be credited with the frequent 
proposal of amendments. 

Louisiana, which does not have the initiative but has an elabo¬ 
rate and complex constitution, has had since 1900 not only one hund¬ 
red and thirty-four proposed amendments but also a constitutional 
convention. Of the eighty-eight proposals submitted in Oregon since 
1900, forty-three were proposed by initiative petition. 



173 


II. ILLINOIS EXPERIENCE. 


Historical Account: The Illinois constitution of 1818 provided 
for the alteration of that instrument only through the medium of a 
constitutional convention. Practically all the states came, after ex¬ 
perience, to a realization that specific constitutional amend¬ 
ments might often be desirable, and the assembling of a 
convention for the purpose of proposing one or two slight 
amendments is both cumbersome and expensive The constitu¬ 
tion of 1848 was, therefore, in line with the general development in 
other states when it provided for the proposal of amendments by 
legislative action as well as through the assembling of a constitutional 
convention. 

The proposed constitution rejected in 1862 made somewhat fuller 
provisions regarding a constitutional convention than did the constitu¬ 
tions of 1818 and 1848, specifically requiring that alterations made by 
a convention should be submitted to the people for adoption or re¬ 
jection. The proposed constitution of 1862 left unaltered the pro¬ 
visions of the constitution of 1848 for legislative proposal of amend¬ 
ments, with the exception that the general assembly was to have 
power to propose amendments to no more than two articles of the 
constitution at the same time. 

In the convention of 1869-70, difficulty presented itself with re¬ 
spect to the oath to be taken by delegates and also with respect to the 
filling of vacancies in the convention. To meet these difficulties for 
the future and to make the convention clause more specific, detailed 
provisions were adopted as to the composition and organization of a 
constitutional convention, and it was also required that the work of a 
convention be submitted to the electors for ratification. 

With respect to the power of the general assembly to propose 
amendments, important changes were made. The constitution of 
1848 required the action of two successive sessions of the general 
assembly for the proposal of constitutional amendments, and the con¬ 
stitution of 1870 simplified the procedure by providing for proposal as 
a result of one action of the general assembly. 

In two other respects, however, the amending process in the con¬ 
stitution of 1870 was made more difficult than that of the constitution 
of 1848. The constitution of 1848 provided that “the general assem¬ 
bly shall not have power to propose an amendment or amendments to 
more than one article at the same session”. To this provision the con¬ 
stitution of 1870 added the provision that amendments should not be 
proposed to the same article oftener than once in four years. 

The constitution of 1848 provided that an amendment proposed 
by the general assembly should be submitted at the next general elec- 



174 


tion, and should be adopted if “a majority of all the electors voting at 
such election for members of the house of reperesentatives shall vote 
for such amendment”. The constitution of 1870 provides that sub¬ 
mission shall be at the next election of members of the general as¬ 
sembly, and that the amendment shall be adopted if approved by “a 
majority of the electors voting at said election”. 

Although in certain respects an amendment of the constitution of 
1870 was made more difficult than that of previous constitutions, it is 
hardly accurate to say that the present constitution is more difficult to 
amend than previous constitutions. The difficult and cumbersome 
method of proposing amendments by the legislature under the consti¬ 
tution of 1848 prevented constitutional change, and only one amend¬ 
ment was proposed to the people between 1848 and 1870. In spite of 
the added difficulties imposed by the constitutional convention of 
1869-70, it may be said that each new constitution in Illinois has been 
easier to amend than the preceding constitution. 

One point, however, was not sufficiently considered by the fra¬ 
mers of either the constitution of 1848 or of the constitution of 1870. 
The constitution of 1818 contained little detail, and on that account 
would not have required as frequent change as the later constitutions. 
The framers of the later constitutions however did not realize that 
they were placing in the constitutions a mass of detail, which must be 
subject to relatively'easy change, and did not adjust their amending 
methods to this fact. If a constitution is to deal with nothing but 
matters of fundamental and permanent importance, it may properly 
be difficult to alter, although one generation can hardly determine 
finally what are to be matters of fundamental and permanent import¬ 
ance for the next generation. If numerous details are to be placed 
in a constitution, some provision must be made for the ready altera¬ 
tion of such details or the constitution becomes a permanent bar to 
progress. The framers of the constitutions of 1848 and 1870 placed 
a large amount of detail in these constitutions, and at the same time 
adopted amending processes for these constitutions upon the assump¬ 
tion that the constitutions contained only matters fundamental in 
character and unchanging in principle. These two attitudes were 
necessarily conflicting and produced serious difficulties. 


Amending clause of the constitution of 1870: The amending 
clause of the constitution of 1870 is, as has been suggested above, sim¬ 
pler than was the amending clause of 1848. However, into the clause 
of 1870 were inserted two provisions which have made difficulty, al¬ 
though as to one of them at least this difficulty probably could not 
have been foreseen by the members of the convention of 1869-70. 

The points of difficulty in the constitution of 1870 are: (a) The 
limitation against the proposal of amendments to more than one article 
of the constitution at the same session, or to the same article oftener 
than once in four years, (b) The requirement of a two-thirds vote of 
all members elected to each of the two houses in order to propose a 



175 


constitutional amendment, and (c) The provision that proposed 
amendments shall be approved by a majority of the electors voting at 
the general election. 


Limitations upon the proposal of amendments : The provision 
against the proposal of amendments to more than one article of the 
constitution at the same session first appeared in the constitution of 
1848. With respect to the operation of this limitation in the constitu¬ 
tion of 1848 Mr. Dement said in the convention of 1870: “Such were 
supposed to be the defects of the present constitution in several of the 
articles, that the persons whose attention was directed to abuses in the 
judiciary department of the state would not propose an amendment 
unless to that article. Others who viewed the objections to the execu¬ 
tive or legislative articles as more serious, insisted that those were the 
articles that should be first amended—or one of those articles; and 
the consequence was the general assembly could not unite a majority 
of two-thirds in favor of any one amendment.^ This situation 
has continued in the constitution of 1870. Morc than one amend¬ 
ment may be proposed at the same session if several proposed 
amendments relate to the same article of the constitution. So, 
for example, proposals to abolish cumulative voting and establish the 
initiative and referendum in legislation may under the present con¬ 
stitution be submitted at the same session of the gen¬ 
eral assembly. But if only one were submitted, the other could not 
be proposed within the succeeding four years. However, where several 
amendments to the constitution have been urged at the same time, 
they have usually related to dififerent articles. In as much as proposed 
amendments to different articles could not be submitted at the same 
session, deadlocks naturally resulted among the groups favorable to 
the amendment of different articles, just as in the period before 1870. 
It was suggested in 1870 that if more than one amendment could be 
proposed at the same time, there would be “log rolling” among the 
advocates of various amendments. An equally serious danger has re¬ 
sulted in the present constitution in that deadlocks may prevent any 
proposed change, and in that the opponents of a proposed amendment 
may hide their opposition by advocating some other proposal at the 
same time. 

Aside from the possibility of deadlock presented by the constitu¬ 
tional provision here under discussion, another difficulty presents itself 
in that a matter sought to be handled by amendment may be dealt with 
by two separate articles of the constitution. For example, any initi¬ 
ative and referendum proposal both for legislation and for constitu¬ 
tional amendments would have had to alter two articles of the present 
constitution. In this as in many other cases, but one subject is in¬ 
volved, but to handle that subject as a unit is impossible under the 
present rule. 


'Debates and Proceeding's, Illinois Constitutional Convention, 1869-70, II, 
1315. 



176 


Each article of the constitution is bound up more or less closely 
with every .other article, and in amending one, some change is apt to be 
worked in others. With reference to this matter, however, the Su¬ 
preme Court of Illinois has taken a liberal and common-sense view and 
has said that the restriction in the constitution “was not intended to 
prevent implied amendments or changes which were necessarily 
worked in other articles of the constitution by the express amendment 
of a particular article of the constitution. Any other view would be so 
narrow as to prohibit the general assembly in many, if not in all cases, 
from proposing amendments to a particular article of the constitution, 
as the several articles of the constitution are so far connected and de¬ 
pendent upon each other that a change in any article generally, if not 
universally, has the effect to produce changes of more or less im¬ 
portance in one or more of the articles of the constitution other than 
that which is expressly amended.”" But this interpretation gives no 
aid with respect to a proposal which may require changes directly or 
expressly in more than one article of the constitution. 

The limitation that amendments may not be proposed to the same 
article oftener than once in four years has not made any apparent 
difficulty since it was inserted in the constitution of Illinois. This has 
been primarily because the “one article at a time” clause has dis¬ 
couraged amendments and prevented the raising of a situation in 
which the four-year limitation might operate. Had the other limita¬ 
tion not been present, it is possible that the four-year limitation would 
have proven an obstacle to amendments. Where an article of the con¬ 
stitution contains as many and as distinct provisions as does the legis¬ 
lative article, there seems to be no logical reason for the four-year 
limitation. This is especially true in view of the fact that two or more 
amendments to the same article may be proposed and submitted at the 
same time under the present constitutional provisions. 


Legislative proposal of amendments: The constitution of 1848 
required the action of two successive sessions of the general assembly, 
this action to be taken by two-thirds of all the members elected to each 
of the two houses in the first session, and by a majority of all the 
members elected to each house in the second session. The constitution 
of 1870 simplified this machinery very materially by providing for 
submission to the people after an affirmative vote of two-thirds of all 
the members elected to each of the two houses. The requirement of 
action by two successive legislatures had proven unnecessary, not only 
in Illinois but in other states, and the tendency in other states has been 
to discard such a requirement. 

The two-thirds vote required by the present constitutional pro¬ 
vision would probably not have proven essentially difficult had other 
limitations upon the amending process not existed. In the states pro¬ 
viding for the proposal of constitutional amendments by one legislature 
only, the more common requirement is that the proposal be one by two- 


acity of Chicago v. Reeves, 220 Ill. 284 (1906). 



177 


thirds of the members elected to each of the two houses, although 
some states require a three-fifths vote, and recently there has been a 
tendency to require merely a majority vote. 


Popular vote required for the adoption of amendments: As 

has already been indicated, the constitution of 1870 requires that a 
proposed amendment shall receive the votes of a majority of the 
electors voting at the next election of members of the general as¬ 
sembly. The constitution of 18-18 on the other hand provided for 
adoption upon the vote of a majority of all the electors voting at the 
next general election for members of the house of representatives. 
The framers of the constitution of 1870 do not seem to have intended 
to make the adoption of a constitutional amendment by popular vote 
more difficult, but such a result was actually accomplished by a slight 
change in phraseology. 

The constitution of 1848 provided that amendments should be 
submitted at the next general election and “if a majority of all the 
electors voting at such election for members of the house of repre¬ 
sentatives shall vote for such amendment or amendments, the same 
shall become a part of the constitution.” The constitution of 1870 
provides that proposed amendments “shall be submitted to the electors 
of this state for adoption or rejection, at the next election of members 
of the general assembly, and if a majority of the electors voting at 
said election shall vote for the proposed amendments they shall be¬ 
come a part of this constitution”. In view of the fact that the highest 
vote at a general election is apt to be larger than the votes for mem¬ 
bers of the general assembly, the constitution of 1870 under present 
voting methods imposes a higher standard of popular vote than did 
the constitution of 1848. However, this would probably not have been 
the case in 1870, and there was much plausibility in the contention 
that the language of the two constitutions was intended to mean the 
same thing, although, narrowly construed, the language of the consti¬ 
tution of 1870 said something different from that of the constitution 
of 1848. This view was rejected by a divided court in People v. 
Stevenson.® 

The form of ballot employed in Illinois at different periods has 
had a pronounced influence upon the result of popular voting. Before 
1848 viva voce voting was permitted by the constitution of Illinois. 
Under this plan when the voter approached the polls he was asked not 
only to name his choice of candidates but also to vote “yes” or “no” 
upon any measure that may have been pending. Under the circum¬ 
stances it was easier to vote than to refuse to answer. This in part 
explains the fact that the vote in this state upon the question of calling 
a convention in 1824 was almost equal to the total vote cast for candi¬ 
dates at the same election. 

The printed ballot has been in use in Illinois since 1848. Until 
1891, however, the printing of ballots devolved upon political parties. 


3 281 Ill. 17 (1917). 



178 


and the parties could either: (1) omit all mention of the proposed 
amendment from their ballots; (2) print the measure in such a way 
as to leave the voter an option to vote for or against it, or (3) to 
print either the affirmative or the negative of the measure. The third 
alternative was the one usually taken advantage of, and every straight 
party vote was therefore cast in accordance with the party action 
which appeared upon the ballot. Upon a ballot of tliis character it was 
easily possible to cast upon a measure substantially the same vote as 
that cast by regular voters upon candidates. For this reason the 
framers of the constitution of 18G9-70 would probably have had little 
if any notion of difficulty being occasioned by the variation in language 
as to the popular majority required for the approval of constitutional 
amendments. 

An official ballot act was adopted in 1891 and constitutional 
amendments were, during the period from 1891 to 1899, printed upon 
the official ballot for candidates with blank spaces for a vote upon 
either side of the question. During this period, with measures printed 
upon and usually at the bottom of the candidates ballot, less than 
twenty-five per cent of those voting in the elections expressed them¬ 
selves upon measures. The party column ballot did not permit of any 
satisfactory adjustment for voting upon questions, and the only per¬ 
sons voting upon measures were those who searched out the measures 
upon the printed ballot. In 1899 legislation waS enacted providing for 
a separate ballot for measures, and with a separate ballot the number 
of votes upon measures almost immediately doubled. The voters’ at¬ 
tention was directly called to the measures being submitted, for the 
so-called “little ballot” for measures was handed to the voter, together 
with the ballot for candidates. It became as easy to vote upon the 
measures as to refrain from doing so. 

Upon measures whose importance was not relatively different, it 
was easy to get out a large vote before 1891, impossible between 1891 
and 1899, and difficult though not impossible since 1899. 

Upon the constitutional amendment adopted in 1904 the requisite 
vote was obtained only after an expensive campaign. Upon, the 
amendment of 1908 all parties were united and a vigorous campaign 
was conducted. Upon the proposed tax amendment of 1916 a vigor¬ 
ous campaign was conducted but this proposal failed, although the 
favorable vote was 656,298 as against 295,782. The favorable vote 
was not a majority of the total vote at the election, which was 
1,343,381. 

The matter here discussed is of course entirely unrelated to the 
terms of the constitution, but it indicates the extent to which ballot 
forms may determine the ease or difficulty of operating under a consti¬ 
tutional provision. In 1870 the popular vote required by the constitu¬ 
tion would have been relatively easy to obtain upon almost any meas¬ 
ure as to which the favorable sentiment was stronger than the opposi¬ 
tion, and the same situation substantially continued until 1891. Be¬ 
tween the years 1891 and 1899 it would have been practically im¬ 
possible to adopt any constitutional change because of the ballot form 
then in use. Since 1899 a proposed constitutional amendment may be 



179 


adopted if public sentiment is sufficiently united and if a sufficiently 
vigorous campaign is made, although the chances even then are 
against the proposal.'^ 


Constitutional convention under the constitution of 1870: Un¬ 
der the constitution of Illinois the following steps are necessary in 
order to obtain constitutional revision through a convention : (1) sub¬ 

mission to the electors of the question as to whether a constitutional 
convention should be called, this submission requiring a vote (entered 
upon the journals thereof) of two-thirds of the members of each 
house; (2) vote for a convention by a majority of the electors voting 
at the next general election; (3) action by the next general assembly 
providing for a convention; (4) meeting of the convention within 
three months after the election of its members and the preparation of 
“such revision, alteration or amendments of the constitution as shall 
be deemed necessary”; (5) approval of such proposed changes by a 
majority of the electors voting at an election appointed by the conven¬ 
tion for that purpose, not less than two nor more than six months 
after the adjournment of the convention. 

Since 1909 a b_ystematic and continuous effort has been made lu 
obtain a constitutional convention in this state, and earlier attempts 
had been made beginning with the year 1884. It is difficult to obtain 
a vote of two-thirds of the members of each house, and equally difficult 
to obtain the approval of a majority of the electors voting at the next 
general election. However these difficulties were overcome in 1917 
and 1918 and the general assembly by legislation in 1919 provided for 
the assembling of the constitutional convention of 1920. 

The assembling of a constitutional convention should be a difficult 
task, if other and simpler methods are provided for the alteration of 
the constitution in specific cases. Although some changes in detail 
should be made in the present section of the Illinois constitution with 
respect to the assembling of a constitutional convention, there may be 
some question as to whether the assembling of such a convention 
, should be made easier. 


Relation between two methods of constitutional alteration: 
The chief difficulty with respect to the alteration of the constitution 
of 1870 is that both methods prescribed for constitutional change are 
difficult of operation. The process of specific amendment is neces¬ 
sarily the simpler, and the less expensive. This process should be em¬ 
ployed for changes ordinarily desired, leaving the assembling of a con¬ 
vention for the less frequent and more serious task of re-examination 
of the whole of the constitutional text. However, the two methods of 
constitutional change now provided by the constitution of Illinois do 

■* See Gardner, C. O.. The working of the state-wide referendum in Illinois. 
American Political Science Review, V, 394 (1911) 



180 


not bear a proper relationship to each other, because the method of 
specific amendment is so difficult that constitutional revision of any 
important character must almost necessarily await the time when the 
need for change has become so serious as to force the assembling of a 
convention. The desirable results to be obtained from having two 
methods of constitutional alteration, the one simple aiid inexpensive, 
the other cumbersome and expensive, is, therefore, largely lost under 
the present constitutional provisions of Illinois. 


Use of amending clause in Illinois since 1870: It is of course 
true that no constitutional convention has been assembled in Illinois 
between the years 1870 and 1920, and until 1909 no concerted and 
persistent effort had been made for the assembling of a constitutional 
convention. 

However, the amending clause has been successfully employed 
seven times. During the period from 1892 to 1899 three proposed 
amendments were submitted.. Upon the proposal submitted in 1892 
for the amendment of the amending article, the negative vote was 
larger than the affirmative vote. Upon the proposed amendments of 
1894 and 1896 and upon the proposed tax amendment of 1916 the 
affirmative vote was much greater than the negative vote. A table of 
amendments submitted is given below. 


Amendments submitted since i8yo. 









o f 
tropo- 
total 
elec- 





s 

o 

d 


o 


Proposition. 

o 

CO 

cd 

bo 

<D O 

-i-i 

^ CO 

<v 


<D ® 

ce o 



(U 

0) 

D. 

'SS 

^ o 

uEg o o o 

S O .llj o o 



o 

O 


O " 





> 

> 

H 




1878 

Drainage Amend¬ 








ment . 

295,960 

60,081 

356,041 

448,796 

65.94 

79.33 

1880 

County Officers 








Amendment . 

321,552 

103,966 

425,518 

622,306 

51.67 

68.37 

1884 

Amendment veto 








of separate items 
of appropriation 
bills .■. . 

427,821 

60,244 

488,065 

673,096 

63.56 

72.50 

1886 

Amendment abol¬ 








ishing contract 

convict labor . . . 

306,565 

169,327 

475,892 

574,080 

53.40 

82.89 

1890 

Amendment auth¬ 








orizing Chicago 

bond issue for 








Columbian Expo¬ 
sition . 

500,299 

55,073 

555,372 

677,817 

73.81 

81.93 

1892 

Amendment to 








amending article. 

84,645 

93,420 

178,065 

871 508 

9.70 

20.43 

1894 

Amendment to pro¬ 








vide for labor 
legislation .. 

155,393 

59,558 

214,951 

873,426 

17.79 

24.61 






]81 


Amendments submitted since iSyo. —Concluded. 


Proposition. 


1896 Amendment to arti¬ 
cle on amendment 

1904 Amendment provid¬ 
ing; for special 
legislation for 
Chicag’o. 

1908 Amendment to sep¬ 
arate section on 
canal to authorize 
$20,000,000 bond 
issue . 

1916 Tax amendment to 
the constitution . . 

Eleven proposed amendments have been submitted since 1870 of 
which seven have been adopted and of which four have failed. At¬ 
tention however should be called to the fact that five of the amend¬ 
ments which have been adopted were voted upon before the official 
ballot law of 1891. Of the six amendments submitted since that time 
one received a smaller affirmative than negative vote, two were 
adopted, and three failed of adoption because not obtaining a majority 
of all votes cast in the general election. 

As has been suggested above, the provision regarding the sub¬ 
mission of an amendment to but one article of the constitution at 
the same session has in many sessions occasioned deadlocks and has pre¬ 
vented the submission of proposed amendments. The submission of 
proposed amendments by the general assembly has also been discour¬ 
aged by the knowledge that it would be very difficult to obtain the 
adoption of such amendments. 


> o 
ft 


. 

|| 
_ O 


oft 


d o 


C 

o 0.2 


2-^ 
ft _ 4 ) 


.2 C3 ^ 

o o .tii -g o 
m 


163,057 66,519 229,576 1,090,869 14.94 21.04 


678,393 94,038 772,431 1,089,458 62.27 


70.90 


692,522 195,177 887,699 1,169,330 59.22 75.91 

656,298 295,782 952,080 1,343,381 48.85 70.87 


Suggested changes in details of present amending clause: A 
number of points in the present article for the alteration of the con¬ 
stitution require comment in connection with possible changes: 

(a) Section 1 of Article XIV requires for the calling of a con¬ 
vention a majority, vote at the next general election. Section 2 re¬ 
quires for the adoption of a proposed amendment “a majority of the 
electors voting” at the next election of members of the general as¬ 
sembly. This variation in language might easily have been construed 
to indicate a variation in intent, and this view was actually taken by 
two members of the Supreme Court in the case of People v. Steven¬ 
son, 281 Ill. 17 (1917). The language in these two sections should be 
made uniform or clarified although the decision of the Supreme Court 
has already by interpretation accomplished the result of clearing up. 
any ambiguity. 




182 


(b) Section 2 of Article XIV requires for the proposal of 
amendments a vote of two-thirds of all the members elected to each 
of the two houses. Article XIV, Section 1, provides for a vote, in 
submitting the question of calling a convention, of two-thirds of the 
members of each house of the general assembly. The language in 
these two places was probably intended to mean the same thing, but 
if the necessity for future judicial interpretation of one of these 
clauses is to be avoided, the language should be made uniform. The 
language of Section 2 is perfectly clear. The language of 
Section 1 may perhaps be more properly construed to re¬ 
quire merely two-thirds of a quorum of each house although 
in view of the other provisions of the constitution regarding 
legislative votes, this may be doubtful. Language similar to 
that of Article XIV, Section 1, has been construed in other states to 
require merely two-thirds of a quorum, and a view supporting such 
a construction has recently been taken by the United States Supreme 
Court.^ 

(c) Article XIV, Section 1 of the constitution provides that 
delegates to a convention shall be elected in the same manner “as 
members of the senate’’. This has been almost necessarily construed 
to require partisan nomination and election of delegates in 1919. 
vSuch a result could in no way have been anticipated by the framers 
of the constitution of 1870, and if the result is not desired a change 
of the section should be made in this respect.® 

(d) Article XIV, Section 1, of the constitution provides that 
the qualifications of members of the convention shall be the same as 
that of members of the senate. The result of this provision is to apply 
to delegates the provisions of Article IV, Sections 3 and 4 of the 
constitution, and to exclude members of the general assembly from 
membership in the constitutional convention unless they cease to be 
members of the general assembly. Such a result may or may not 
have been intended, but it should be borne in mind that permitting 
the present language to stand as it is will have the result indicated. 

® Green v. Weller, 32 Miss. 650 (1856); State v. McBride, 4 Mo. 303 (1836); 
Missouri Pacific Railway Co. v. Kansas, 248 U. S. 276 (1919). 

« Manner of choosing delegates to the Illinois constitutional convention, pub¬ 
lished by the Citizens Association of Chicago, January, 1919. 





183 


III. AMENDING METHODS IN OTHER STATES. 


Of the present state constitutions the provisions for specific 
amendment may be divided into six classes: 

(1) The proposal of amendments by a constitutional conven¬ 
tion only (New Hampshire) ; 

(2) Amendment by the action of two successive legislatures, 
without a direct popular vote. (Delaware) ; 

(3) Proposal by the legislature with a popular vote upon the 
proposal, but with the ultimate approval or rejection (South Caro¬ 
lina) or the insertion of the amendment into the constitution (Miss¬ 
issippi) left with the legislature after the people have approved a 
proposed amendment. It should be noted, however, that in Mississ¬ 
ippi, initiated amendments take effect upon approval by the people. 

(4) Amendments proposed by the legislature and subject to 
popular approval, but with the amending process subject to such re¬ 
strictions as to make constitutional amendment difficult. Such re¬ 
strictions are of three kinds: 

(a) The requirement of action by two successive legisla¬ 
tures for the proposal of amendments. (Connecticut, Indiana, 
Iowa, Massachusetts, New Jersey, Nevada, New York, Pennsyl¬ 
vania, Rhode Island, Tennessee, Vermont, Virginia, Wisconsin). 
Of the states enumerated here, attention should be called to the 
fact that Massachusetts in 1918 and Nevada in 1912 adopted a 
popular initiative for the proposal of constitutional amendments. 

(b) Limitations as to the number, frequency and character 
of proposals. (Arkansas, Colorado, Illinois, Indiana, Kansas, 
Kentucky, Montana, New Jersey, Pennsylvania, Tennessee, Ver¬ 
mont.) Of these states, attention should be called to the fact 

* that Colorado, (1910) adopted the initiative for the proposal of 
constitutional amendments, and that the initiative process is 
held to be free from the limitation upon the number of amend¬ 
ments that may be submitted; and that Arkansas, (1910) permits 
the popular initiative of constitutional amendments, but that in 
Arkansas the popular initiative of amendments is held subject to 
limitation as to the number of proposed amendments that may be 
submitted. 

(c) Requirements of a popular vote greater than that of a 
majority of all persons voting upon the amendment. (Alabama, 
Arkansas, Connecticut, Illinois, Indiana, Minnesota, Mississippi, 
Nebraska, Oklahoma, Rhode Island, Tennessee, Wyoming). Ar¬ 
kansas (1910) permits the adoption of amendments proposed by 
initiative petition by a majority of those voting upon the ques¬ 
tion, but still requires for amendments prot)Osed by legislative 



184 


action a majority of those voting at the election. Nebraska 
(1912) requires a 35 per cent affirmative vote of those voting 
at the election for amendments proposed by initiative petition 
and a majority of those voting at the election for amendments 
proposed by the legislature. Mississippi requires a majority of 
those voting at the election for constitutional amendments pro¬ 
posed by the legislature, but only a majority of those voting upon 
the question for amendments proposed by initiative petition. 
Amendments proposed by constitutional convention in New Hamp¬ 
shire must receive two-thirds of the vote cast upon the question 
for their adoption or rejection. 

(5) The unrestricted proposal of amendments by one legislative 
action merely and adoption by a majority of the persons voting thereon. 
(Maryland, Michigan, Missouri, New Mexico, North Carolina, North 
Dakota, Ohio, Oregon, South Dakota, Texas, Utah, Washington, West 
Virginia.) It is possible that New Mexico should be placed in the 
group of states having restrictions as to the character of proposals, 
although the method of proposal under an amendment of 1912 is not 
difficult. The restrictions upon the legislative proposal of amendments 
in Colorado, Kansas and Montana are so slight as to make it proper to 
class the constitutions of these states here rather than among those 
difficult of amendment. South Carolina may also be classed with this 
group in so far as respects the proposal of and popular vote upon 
amendments. 

(6) Those which in addition to the legislative power of proposal 
permit the popular initiation of constitutional aniendments. (Arizona, 
Arkansas, California, Colorado, Massachusetts, Michigan, Mississippi, 
Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, 
Oregon.) 

The tendency has been steadily toward the easy amending process 
represented by the fifth type, and since 1902 there has been a rapid 
development in the use of the popular initiative for the amendment of 
constitutions. The group of states whose constitutions are least flexi¬ 
ble is that of subdivision (c) of the fourth type; but where, in ad¬ 
dition to the requirement of a majority of all votes at an election, 
there are other restrictions upon the amending process, the alteration 
of a constitution often becomes practically impossible. This is true 
of Tennessee, where we have a combination of limitations—not only 
is a majority of all votes for representatives required to be cast for an 
amendment, but amendments may only be proposed once in six years, 
and the action of two successive legislatures is required for such pro¬ 
posal. So, but to a less extent than in Tennessee, the amending pro¬ 
cedure in Illinois and Indiana is burdened by restrictions to such an 
extent as to be practically unworkable, although the Indiana restric¬ 
tions are more serious than those of Illinois. 

The requirement of proposal by two successive legislatures, while 
it defeats many projects which would otherwise go to the people, can¬ 
not be said to interpose serious obstacles in the way of constitutional 
alteration, nor in fact even in the cases of Vermont, Tennessee, New 
Jersey, Pennsylvania and Illinois do the restrictions upon the proposal 


185 


of amendments interpose insuperable barriers, but when these pro¬ 
visions are combined with the requirement of a popular vote which is 
ordinarily impossible to obtain except upon questions of the greatest 
importance, as is done in Tennessee, the amending process becomes 
almost useless. Even where the restrictions are not so stringent, but 
where two legislative actions are required and the power of legislative 
proposal restricted, the amending process is slow and cumbersome, 
preventing a ready adjustment of the constitution to changing con¬ 
ditions. This is peculiarly true in view of the fact that substantially 
all of the state constitutions outside of New England contain numer¬ 
ous detailed provisions which may require frequent alteration. 

The hindrances to constitutional change which have been devised 
are of two kinds: (1) Those which make any change difficult, and 
(2) those which make an actual change fairly easy but which provide 
a method of change requiring a long time for its operation. The pro¬ 
visions requiring a popular vote equal to that of a majority of all 
votes cast in a general election, belong to the first class. Those requir¬ 
ing two legislative actions and permitting the proposal of amendments 
only at long intervals belong to the second class. Certainly the re¬ 
quirement of a long time to obtain an amendment forms a check upon 
constitutional change. The limitation through the requirement of 
action by two successive legislatures is not serious in the small number 
of states still having annual legislative sessions, as in New York and 
South Carolina. 


Limitations upon submission of constitutional amendments: 

There are twelve constitutions which impose limitations as to the 
number, frequency and character of proposed amendments. New 
Jersey permits the proposal of amendments only once in five years, 
Tennessee once in six years, and Vermont once in ten years. Pennsyl¬ 
vania provides that no amendment or amendments shall be submitted 
oftener than once in five years. The Illinois constitution provides that 
no amendments shall be proposed to more than one article of the con¬ 
stitution at the same session, and that the same article shall not be 
amended oftener than once in four years. Colorado (1876) provided 
that the legislature should not have power to propose amendments to 
more than one article at the same session, but this provision was 
amended in 1900 so as to permit the proposal of amendments to six 
articles at the same time, and even this limitation is held not to apply 
to initiated amendments.^ 

In Indiana, while an amendment agreed upon by one legislature 
is waiting the action of the succeeding legislature, no additional 
amendment may be proposed. A similar provision of the Oregon 
constitution was repealed in 1906. Arkansas, Kansas and Montana 
forbid the submission of more than three amendments at the same 
election, and the Arkansas limitation is held to apply to amendments 


1 People ex rel. Tate v. Provost, 55 Colo. 199 (1913). 



18G 


proposed by initiative petition as well as to those proposed by the leg¬ 
islature.^ 

Kentucky forbids the submission of more than two amendments 
at the same time and provides that the same amendment shall not be 
submitted oftener than once in five years. The provisions in Arkan¬ 
sas, Florida, Kentucky, New Mexico and Texas that amendments may 
be submitted only at regular legislative sessions do not constitute a 
serious restriction upon the amending power. The New Mexico con¬ 
stitution provides that no amendment affecting certain matters relat¬ 
ing to the elective franchise apd education shall have -effect unless it 
be proposed by a vote of three-fourths of the members elected to each 
house and ratified by a vote of the people in an election at which at 
least three-fourths of the electors voting in the whole state, and at 
least two-thirds of those voting in each county in the state, shall vote 
for such amendment. The New Mexico provision was intended for 
the purpose of giving guarantees to the Spanish speaking population. 
Certain restrictions upon the use of the initiative in proposing amend¬ 
ments are commented upon in another place. 

The restrictions upon the proposal of amendments in Arkansas, 
Colorado, Kansas and Montana are relatively slight and have not 
proven troublesome, except in Arkansas where two methods of sub¬ 
mission have come into conflict. However, the limitations in Pennsyl¬ 
vania, New Jersey, Vermont, Tennessee^ Indiana and Illinois are so 
strict as to prevent the ready adaptation of the constitutions to chang¬ 
ing conditions. 


Legislative action in submitting constitutional amendments: 
The requirement of action by two successive legislatures was aban¬ 
doned by Illinois in 1848, and the tendency throughout the country 
for some time has been directly away from such a plan. Of the nine¬ 
teen constitutions adopted since 1885 all but three provided for action 
by one legislature only; Oregon by amendment of 1906 and North 
Dakota by amendment of 1918 have made a similar provision. In the 
states providing for only one legislative action, it has usually been 
customary to require such action to be taken by more than a majority 
of the legislature. Of the thirty-three constitutions to which amend¬ 
ments may now be proposed by one legislative action, nine permit such 
proposal by a majority vote (Arizona, Arkansas, Minnesota, Missouri, 
New Mexico, North Dakota, Oklahoma, Oregon, and South Dakota) ; 
seven require a three-fifths vote (Alabama, Florida, Kentucky, Mary¬ 
land, Nebraska, North Carolina, Ohio) ; and seventeen require a vote 
of two-thirds of the members of each of the two houses (California, 
Colorado, Georgia, Idaho, Illinois, Kansas, Louisiana, Maine, Michi¬ 
gan, Mississippi, Montana, South Carolina, Texas, Utah, Washington, 
West Virginia and Wyoming). 

^ In practically all the states the constitutions s])ecify that the 
majorities required for the proposal of amendments shall be majori¬ 
ties of all members elected to each of the' two houses, although in a 

estate ex rel. Little Rock v. Donaghey, 106 Ark. 56 (1912). 







187 


few cases the requirement is that of a majority or a greater propor¬ 
tion of the members of the two houses. A reference has already 
been made above to the confusion likely to result through the fact 
that the convention clause of the Illinois constitution does not state 
a precise standard in this regard. 

The rejected New York constitution of 1915 provided for a 
joint session of the two houses to consider a proposed amendment 
after either house had adopted such a proposal, leaving the action 
of each house to be taken sepamtely, however. A use of joint ses¬ 
sions is prescribed in Massachusetts for the consideration of pro¬ 
posals of amendment initiated by popular petition. 


Proposal by popular initiative: A separate pamphlet is de¬ 
voted to the initiative and referendum, and in this pamphlet will be 
found a full analysis of the initiative and referendum provisions in 
all states which have applied the initiative to constitutional amend¬ 
ments. No effort will be made here to analyze the initiative pro¬ 
visions of state constitutions in detail, but a statement will be made 
sufficiently full to indicate the relationship of the .popular initiative 
to other methods of altering state constitutions. 

Of the states which have adopted the popular initiative, four¬ 
teen apply this institution to the proposal of constitutional amend¬ 
ments, so that in these states there are two methods of specific pro¬ 
posal of constitutional changes (Arizona, Arkansas, California, Colo¬ 
rado, Massachusetts, Michigan, Mississippi, Missouri, Nebraska, Ne¬ 
vada, North Dakota, Ohio, Oklahoma and Oregon). The states of 
Oregon, Nevada, Missouri, Arkansas, Colorado and Mississippi per¬ 
mit the use of the initiative for the proposal of constitutional amend¬ 
ments in the same manner as for the proposal of laws. California 
substantially belongs in this group, the only distinction in 
this state being that for statutes there is both a direct and an indirect 
initiative, while for constitutional amendments there is merely a direct 
initiative. 

In seven states distinctions are made between constitutional 
amendments and statutes. In Oklahoma, Arizona, Nebraska and 
North Dakota a larger petition is required to propose a constitutional 
amendment. In Oklahoma an eight per cent petition is sufficient for 
ordinary legislation, and a fifteen per cent petition is required for 
constitutional amendments. In Arizona and Nebraska the initiation 
of ordinary legislation is accomplished by a ten per cent petition, but 
for constitutional amendment a fifteen per cent petition is required. In 
North Dakota the initiation of a law requires a petition of 10,000 
voters, and the initiation of a constitutional amendment requires 
a petition of 20,000. Michigan provides for an indirect initiative 
petition of eight per cent for ordinary legislation, and for a direct 
initiative petition of ten per cent for constitutional amendments. 
Ohio provides for an indirect initiative upon ordinary legislation' with 
an original petition of three per cent and a supplemental petition of 


188 


an additional three per cent, but for a ten per cent direct initiative 
upon constitutional amendments. Massachusetts provides for a much 
more complex method of initiating constitutional amendments than 
for the initiation of statutes. Under the Massachusetts constitution, 
25,000 voters may present an initiative petition for a constitutional 
amendment. The proposed amendment then goes before a joint ses¬ 
sion of the general court and three-fourths of the members voting 
in joint session may amend the proposal. If in such joint session 
an initiative amendment receives the affirmative vote of not less than 
one-fourth of all the members elected it is referred to the next gen¬ 
eral court. In the next general court if an initiative amendment or if 
a legislative substitute for such amendment receives the affirmative 
votes of at least one-fourth of all the members elected, the proposed 
amendment is submitted to the people at the next state election and 
is adopted if it is approved by a majority of those voting on the 
amendment, such majority equaling thirty per cent of the total num¬ 
ber of ballots cast at the election. 

Attention should be called particularly to the fact that Arkansas, 
Nebraska and Mississippi make the popular adoption of an amend¬ 
ment proposed by initiative petition easier than the popular adoption 
of an amendment proposed by legislative action. In Arkansas and 
Mississippi an amendment proposed by the legislature requires a 
majority of all votes cast at the election; an amendment proposed by 
popular petition requires merely a majority of the votes cast upon 
the question. In Nebraska an amendment proposed by legislative 
action requires a majority of all votes cast at the election; an amend¬ 
ment proposed by popular petition, an affirmative vote equal to thirty- 
five per cent of the total vote cast at the election. 

The use of the popular initiative for constitutional amendments 
Upon certain subjects is prohibited by a number of detailed provisions 
in Massachusetts. Nebraska and Massachusetts prohibit the proposal 
of the same measure oftener than once in three years, and Oklahoma 
provides that a measure rejected under the initiative and referendum 
shall not be again submitted in less than three years by less than a 
twenty-five per cent petition. 


Popular vote required for the adoption of amendments: The 

constitution of Illinois requires that a proposed amendment in order 
to be adopted shall receive the votes of a majority of the electors 
voting at a general election. 

At least nine other states^ have requirements whicli either ex¬ 
pressly or by interpretation require that a measure receive a majority of 
all votes cast at the election in which submitted, although in Alabama 
and Oklahoma amendments may be submitted at a special election, 

® Alabama, Arkansas, Indiana, Minnesota, Mississippi, Nebra.ska, Oklahoma, 
Tennessee. Wyoming. Attention should be called to the fact that in Arkansas and 
Mississippi a majority of those voting upon the question is sufficient to adopt an 
amendment proposed by a popular petition, and in Nebraska a thirty-five per cent 
affirmative vote is sufficient to adopt a proposal presented by a popular petition.. 



189 


where of course the majority of those voting upon the question is 
substantially equivalent to a majority of those voting at the election. 
Constitutional amendments, however, must ordinarily be submitted at 
general elections, even where this is not expressly required, because 
of the almost prohibitive expense of a special election. 

Rhode Island requires that proposed amendments shall be ap¬ 
proved by three-fifths of the electors of the state present and voting 
thereon, and New Hampshire requires the approval of two-thirds 
of the qualified voters present and voting upon a proposal. 

The Michigan constitution of 1908 authorized a limited use of 
the initiative for the proposal of constitutional amendments, and re¬ 
quired that such a proposed amendment in order to be adopted should 
receive a majority of the votes cast upon its adoption or rejection, 
and the affirmative vote should not be less than one-third of the highest 
number of votes cast at the same election for any office. Nebraska 
provides with respect to initiated amendments that they shall be 
adopted by a majority of the votes cast thereon provided that the 
favorable vote shall constitute thirty-five per cent of the vote cast 
at the election. The first proposed amending clause of the New 
Mexico constitution required that proposed amendments be submit¬ 
ted at a general election and receive an affirmative vote equal to at 
least forty per cent of all votes cast in the state and in at least half 
of the counties. In the New York convention of 1894 it was 
proposed that an amendment should be adopted by either of the 
following methods: (1) by a majority of all the electors voting 
at a general election, or by the affirmative vote of a majority of the 
electors voting thereon, provided that two-thirds of all the electors 
voting at an election voted thereon, or (2) if submitted at a special 
election provided that the affirmative vote equal a majority of all 
the electors voting at the last preceding general election; or by a 
vote of those voting thereon provided the vote at the special election 
equal two-thirds of the vote at the last preceding general election. 



190 


IV. REVISION OF CONSTITUTION THROUGH 
CONVENTION. 


In view of the fact that a number of states have no provisions 
regarding the assembling of constitutional conventions, but actually 
employ such a convention, and in further view of details existing in 
various states with respect to the convention, it is difficult to sum¬ 
marize briefly the different types of constitutional provisions with 
respect to this matter. A statement is given below which seeks to 
summarize in several groups the provisions with respect to this mat¬ 
ter in the several states, but attention should be called to the fact 
that this statement does not attempt any precise logical arrangement 
of these states: 

(1) State with provision for change only by means of a consti¬ 
tutional convention. New Hampshire. This state requires a pop- ' 

ular vote to assemble a convention, and popular approval of the con¬ 
vention’s work. 

(2) States having no provisions for constitutional conventions: 

Arkansas, Connecticut, Indiana, Louisiana, Massachusetts, Missis- ’ 

sippi. New Jersey, North Dakota, Pennsylvania, Rhode Island, Texas ' 

and Vermont. In a number of these states conventions have actually J 

been assembled in the absence of constitutional provisions for such 
conventions, and the generally accepted views is that the legislature jnay ^ 

provide for the calling of a convention, even though the constitution v 

contains no provision with reference thereto. A Rhode Island opinion ' • 

constitutes an exception to this statement. In Indiana a recent judicial ' /i 

de*cision takes the view that in the absence of constitutional pro- ^ 

vision the legislature may call a constitutional convention, but that the ' 

proposal for such a convention must first be submitted to popular 

vote.^ 

(3) Provision merely authorizing legislature to call convention, ‘ - 

without any limitations as to popular vote either for the calling of 

the convention or upon the work of the convention: Maine, Georgia. . . 

(4) States which require the submission to the voters of the 
question of calling a constitutional convention. There are thirty-four 
states which now require such a submission: Alabama, Arizona, 

California, Colorado, Delaware, Florida, Idaho, Illinois, Iowa, Kan- A 

sas, Kentucky, Maryland, Michigan, Minnesota, Missouri Montana, 

Nebraska, Nevada, New Hampshire, New Mexico, New York, North v 

Carolina, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, - 

Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, ' ■ 

Wyoming. - 


1 Bennett V. Jackson, 186 Ind. 533 (1917). 




191 


(5) States authorizing conventions and requiring a popular vote 
to assemble a convention but not expressly requiring the submission of 
the work of the convention to popular vote: Alabama, Delaware, 
Florida, Iowa, Kentucky, Kansas, Minnesota, Nevada, North Caro¬ 
lina, Oregon, South Carolina, South Dakota, Tennessee, Virginia. 
Wisconsin. Generally, however, constitutions have been submitted 
both in the states having no constitutional provisions regarding con¬ 
ventions and in the states having no requirements for submission to 
popular vote. 

(6) States expressly requiring a popular vote to assemble a con¬ 
vention and also expressly requiring submission of the work of the 
convention to a popular vote. Of these there are nineteen: Arizona, 
California, Colorado, Idaho, Illinois, Maryland, Michigan, Missouri, 
Montana, Nebraska, New Hampshire, New Mexico, New York, Ohio, 
Oklahoma, Utah, Washington, West Virginia, Wyoming. 

(7) Those requiring a periodical submission of the question of 
holding a constitutional convention; New Hampshire (seven years), 
Iowa (ten years), Michigan (sixteen years), Maryland, New York, 
Ohio (twenty years). The constitutions of Iowa, New York, Mich¬ 
igan and Ohio also contain provisions permitting submission of the 
question at other times than the ten, sixteen and twenty year periods. 
The Oklahoma constitution leaves to legislative discretion as to when 
the question shall be submitted, but requires that it be submitted once 
in every twenty years. 

(8) Constitutions whose provisions regarding a constitutional 
convention are made completely independent of any legislative action: 
New York, Michigan. 

The popular vote required to authorize a convention varies. Sev¬ 
enteen states either expressly or impliedly require that the necessary 
vote shall be a majority of those cast upon the subject of holding a 
convention: Arizona, California, Colorado, Delaware, Florida, Mis¬ 
souri, Montana, New Hampshire, New York, New Mexico, North 
Carolina, Ohio, Oklahoma, Oregon, Virginia, West Virginia, Wiscon¬ 
sin ; and Kentucky has a similar provision with the additional require¬ 
ment that the total number of votes cast for the calling of a conven¬ 
tion be equal to one-fourth of the number of votes cast at the preceding 
general election. Twelve states require that the proposal of a con¬ 
vention shall be approved by a majority of those voting at a general 
election: Idaho, Illinois, Kansas, Maryland, Minnesota, Nebraska, 
Nevada, South Carolina, South Dakota, Utah, Washington, Wyoming. 
Alabama and Tennessee require a majority of the votes cast in the 
election in which a proposal is submitted, but permit such submission 
to be made at either a general or special election. Michigan requires 
a majority vote of electors qualified to vote for members of the legis¬ 
lature. The vote upon the question of holding a constitutional con¬ 
vention may also be taken at special elections in Missouri, Montana, 
Oklahoma, Virginia and West Virginia. 

Upon the question of adopting or rejecting the work of a con¬ 
stitutional convention, Arizona, Michigan, Maryland, Nebraska, New 



192 


York, Ohio and Oklahoma require merely a majority of those voting 
upon the question of adoption or rejection. California, Colorado, Illi¬ 
nois, Missouri, Montana, and Utah require a majority of all persons 
voting at an election, but California expressly requires that such sub¬ 
mission be at a special election, and Illinois and some other states 
permit submission either at a general or a special election. 

Constitutions vary greatly in the extent to which they prescribe 
details regarding the composition and election of delegates to consti¬ 
tutional conventions. The constitution of Missouri makes the as¬ 
sembling of a convention independent of legislative action after the 
people have voted (upon legislative authorization) that a convention 
shall be held. The New York constitution of 1894 and the Michigan 
constitution of 1908 make a convention completely independent of 
legislative action, provided one is assembled as a result of the period¬ 
ical votes required to be had upon the subject in these states. This 
independence of the convention was provided for first in New York be¬ 
cause of the fact that a popular vote in favor of a constitutional con¬ 
vention was had in New York in 1886, but because of political differ¬ 
ences, legislative provision for such convention was not made promptly 
and the convention did not actually assemble until 1894. 

In some states which have adopted the popular initiative, the 
initiative provisions are sufficiently broad to permit of being used for 
the purpose of initiating a proposal for the holding of a constitutional 
convention. A power by initiative petition to force a vote upon the 
holding of a constitutional convention is not expressly found in any 
constitutional provision and results from implication, so that it is diffi¬ 
cult to say in what states the popular initiative may be so used. How¬ 
ever, the constitutional provisions for the popular initiative in Arizona, 
Michigan, Maine, Oregon, Missouri and Oklahoma seem to include a 
power to initiate a proposal for the holding of a constitutional con¬ 
vention. 



V. ANALYSIS AND CONCLUSIONS. 


Attention has already been called to the fact that in a group of 
states a majority of all of those voting at the election is required to 
adopt a constitutional amendment. These states are; Alabama, Arkan¬ 
sas, Illinois, Indiana, Minnesota, Mississippi, Nebraska, Oklahoma, 
Tennessee and Wyoming. It should again be repeated, however, that 
in Arkansas and Mississippi an amendment initiated by popular peti¬ 
tion may be adopted by a majority voting thereon, and in Nebraska 
an amendment initiated by popular petition may be approved by an 
affirmative vote of thirty-five per cent of those voting in the election. 

In the states just enumerated the amendment of constitutions 
has been particularly difficult, and this is especially true where the 
requirement of such a popular majority has coincided with other 
types of limitations upon the amendment of the constitution, as in 
Indiana and Illinois. In Illinois there have been relatively few votes 
upon constitutional amendments, and therefore relatively few rejections 
bcause of the great difficulty in proposing measures in the first place. 

The requirement that a majority voting at the election shall 
vote in favor of a proposition in effect provides that all abstinence from 
voting shall be treated as negative voting, and it has often proven 
impossible to obtain even upon important questions an affirmative ma¬ 
jority of the total vote cast in general elections. In states requir¬ 
ing a majority of those voting at the election, iti has not been un¬ 
common to submit a proposed amendment at frequent intervals in 
an effort to obtain the required majority. In Indiana a proposal per¬ 
mitting the legislature to prescribe qualifications for admission to the 
bar was submitted to the people in 1900, 1906 and 1910. Upon the 
first submission nearly sixty per cent of the voters expressed them¬ 
selves either one way or the other upon this proposal, but in subse¬ 
quent votes very few voters expressed themselves, apparently be¬ 
cause of the feeling that voting upon constitutional amendments is a 
waste of time in that state. 

A Minnesota proposal concerning the investment of school funds 
to which there was no strong opposition was submitted at three suc¬ 
cessive elections (1900, 1902 and 1904) before it received the required 
vote. Minnesota has had a somewhat similar experience with other 
proposals. In the Minnesota elections of 1912, 1914 and 1916 a num¬ 
ber of proposed constitutional amendments failed of adoption, al¬ 
though some of those which failed in each of these elections received 
very nearly half of the total vote at the election. The same situation 
has presented itself in the other states having this requirement. In 
Oklahoma the constitution permits the submission of proposed amend- 



194 


nients at s])ecial elections, and a special election has been resorted 
to in at least one case, because at such an election the majority of 
those voting at the election is of course substantially equivalent to a 
majority of those voting upon the measure. 

The great difficulty of obtaining for a proposed amendment a 
majority of all votes cast for the leading candidates at the same 
election has led several states in this group to devise methods of 
evading or avoiding the difficulty presented by their constitutional pro¬ 
visions. 

The Alabama constitution of 1(S75 required that proposed amend¬ 
ments be submitted at a general election, and that in order to be 
adopted they should receive the vote of “a majority of all the qualified 
electors of the state who vote for representatives”. The legislature 
in submitting a proposed amendment to the people in 1898 provided 
that the ballot should have printed on it the words “For Birming¬ 
ham Amendment” and that “any elector desiring to vote for said 
amendment shall leave such words intact upon his ballot and any 
elector desiring to vote against such amendment shall evidence his 
intention to so vote by erasing or striking out said words with pen 
or pencil. The leaving of said words upon the ballot shall be taken 
as a favoral)le vote, and the erasure or striking out of said words 
as aforesaid shall be taken as an adverse vote upon said amendment”. 
Under this provision the amendment was carried.^ 

Such a plan can not be employed under the Alabama constitution 
of 1901. Under the Alabama plan just referred to, inaction by the 
voter was counted as an affirmative vote, whereas the constitutional 
provision without such an arrangement counts inaction in the nega¬ 
tive. A similar ballot was employed in New Jersey in 1897. 

A Nebraska statute in 1901 provided that “a state convention 
of any political party may take action upon any constitutional amend¬ 
ment which is to be voted upon at the following election, and said 
convention may declare for or against such amendment, and such 
declaration shall be considered as a portion of their ticket. . .” Where 
a political party endorsed a proposed amendment, such endorsement 
was to be printed as a portion of the party ticket, and a straight party 
vote was counted for the amendment; and in the same manner if 
the party action were against the amendment a straight party vote 
would be counted against such amendment. In enacting a mandatory 
direct primary law in 1907 the Nebraska law reciuired party action 
to be expressed Upon proposed amendments. The Nebraska plan 
was copied by Ohio in 1902, and the Ohio law continued in force 
until 1908, when It was repealed for political reasons. However, 
in order to obtain a majority of the votes at the election upon the cal¬ 
ling of a constitutional convention in 1910, Ohio adopted the same plan. 
Indiana has also provided for the use of this plan in certain cases. 

What the Nebraska plan does is practically what was done in 
the state of Illinois before the official ballot act of 1891. Party en¬ 
dorsements were had and the party endorsement printed as a part of 
the straight party ticket. Voting the party ticket then automatically 

1 May & Thomas Hardware Co. v. Birmingham, 123 Ala. 306 (1908). 


195 


casts a vote upon the proposal, and all voters voting such a ticket are 
counted in accordance with their party’s action. 

Such a plan is of course merely a subterfuge which results in the 
counting in the affirmative rather than in the negative of those who 
will not or do not take sufficient interest to vote upon a measure, 
provided the party has endorsed the measure. 

Such a plan is possible under the present Illinois constitution, but 
it seems clearly more desirable to adopt some recpiirement of a popu¬ 
lar majority that can actually be made effective, than to indulge in 
subterfuges for the purpose of counting an affirmative majority when 
none actually exists. 

The experience of Illinois seems to indicate that there is no 
material difficulty in obtaining an affirmative vote upon a measure of 
forty per cent of those voting for candidates, although some ques¬ 
tions have occasionally not received so large a vote. 

If proposed amendments are to be submitted at a general elec¬ 
tion and some proportion of the total vote at the election is to be re¬ 
quired, it would be unwise to adopt a plan of requiring that a certain 
percentage (say two-thirds or seventy per cent) shall have voted 
upon the question. It may be that upon a proposal there is prac¬ 
tically no negative vote, but an affirmative vote equal to one-half 
of the total vote cast at the election. The total vote both for and 
against may not equal two-third or seventy per cent but the popular 
will has been clearly expressed by a majority of the total vote at the 
election. If a plan is to be adopted it should be that of a proportion 
between the affirmative vote and the total vote cast. So, for example, 
it might be required that a measure should receive a majority of 
the total vote cast upon its adoption or rejection, provided such major¬ 
ity equal forty per cent of the total vote cast in the election. 


Use of the Initiative: Attention has already been called to the 
fact that in fourteen states the popular initiative may be used for 
constitutional amendments. In the states which permit the use of this 
institution 160 amendments have been proposed by a popular petition 
and of these 58 were adopted, that is a percentage of 36.25. In these 
same states within the same period 185 constitutional amendments 
were proposed by the legislature of which 81 were adopted, that is, 
a percentage of 43.78. 


Relation between the constitution and statutes: To a large 
extent the distinction in substance between state constitutions and state 
statutes has disappeared through the practice of embodying detailed 
legislative enactments into the constitutions. Of course it is possible 
to say that detailed provisions devised to meet temporary needs are 
out of place in a constitution and should not be put there at all. The 
fact remains however that most constitutions do contain detailed pro- 



196 


visions. So long as constitutions are filled with matters of legisla¬ 
tive detail, which must necessarily be subject to frequent change, a 
constitution which does not take this fact into consideration and make 
provision for such change, is defective. 

Of course, even matters of importance, perhaps properly placed 
in a constitution at one time, do require change, and an amending 
clause should be so adjusted as to permit change in such matters. 
However, the incorporation into a constitution of a large amount of 
legislative detail makes essential an amending process which may be 
almost as easy as the process for the enactment of ordinary legislation. 

The increasing'detail in state constitution has been largely re¬ 
sponsible for the disappearance of the distinction in form of enact¬ 
ment between statutes and constitutions in a number of states. In 
1776 and for some time thereafter a relatively slight difference existed 
between the forms of constitutional and statutory enactment. The 
distinction became much clearer in later years, and toward the middle 
of the nineteenth century we have a well defined notion that state 
constitutions should not be easily subject to change. In fact this 
nation went much too far and resulted in the tying up of constitutional 
detail in such a manner as seriously to hamper further progress. 

More recently, and particularly during the past twenty years, 
there has been a tendency to weaken quite materially the distinction in 
form of enactment between constitutions and statutes. This distinc¬ 
tion in a number of states has disappeared because of the increased 
popular participation in legislation through the referendum. In the 
earlier period the most fundamental distinction between statutes and 
constitutional amendments was that amendments were required to be 
voted upon by the people, while statutes were infrequently submitted 
to a popular referendum. Twenty states now have constitutional pro¬ 
visions for an initiative and referendum upon ordinary legislation, and 
two states a provision for the referendum upon ordinary legislation. 
The constitutions of Oregon, Nevada, Missouri, Arkansas, Colo¬ 
rado and Mississippi, in their provisions for an initiative and referen¬ 
dum, place the enactment of statutes through these institutions upon 
precisely the same basis as the adoption-of constitutional amendments, 
and California makes very little distinction between the two. In seven 
states which have the initiative and referendum, distinctions are made 
between the use of the initiative for constitutional amendments and 
its use for ordinary legislation.^ 

In state constitutional development in this country two alterna¬ 
tives are possible: 

(a) That of practically abolishing the distinction in content be¬ 
tween the state constitution and ordinary legislation, placing all de¬ 
sired detail in the constitution, and making the constitution substant¬ 
ially as easy to change as is an act of the legislature. 

(b) The embodying into the constitution of only matters of more 
distinct and permanent importance, retaining some distinction in form 
of enactment between the constitution and statutes. Of course, even 
undqr this latter alternative a relatively easy method of constitutional 


2 Arizona, Massachusetts, Michigan, Nebraska, North Dakota, Ohio, Oklahoma. 



197 


amendment may be desirable, but the amending methods need not be 
so easy as under the first plan. 

It may, therefore, be said that the determination of the type of 
amending clause rests primarily upon the determination as to what 
type of constitution is to be adopted. There is a distinct advantage in 
retaining the distinction between constitutions and statutes, and under 
our constitutional provisions in this country (except in Delaware) a 
popular vote is necessary in practically all cases for constitutional 
change. To increase the detail in the constitution, and make the con¬ 
stitution subject to alteration only upon a popular vote will, therefore, 
increase the number of measures upon which the people must be asked 
to express themselves, and whatever may be said in favor of a power 
in the people (through popular petition) to compel the submission of 
legislative or other proposals, there is little to be said in favor of a 
constitutional compulsion requiring the submission to the people of 
numerous matters of relatively small importance. 


Conclusion: In the State of Illinois the present amending 
method is generally recognized as too difficult. In 1893 and 1896 pro¬ 
posals for the alteration of the amending clause were submitted to a 
popular vote, and the vote upon these proposals will be found upon 
page 180 of this pamphlet. One of the proposals was rejected by vir¬ 
tue of an unfavorable popular majority; the other failed because of the 
small amount of popular vote upon it. Reference should again be 
made to the fact that these proposals were submitted in a period when 
the ballot form made it difficult for the people to vote upon a proposed 
constitutional amendment. The text of these two rejected amendments 
is printed in the appendix to this pamphlet. 

Attention should again be called to the fact that in this and other 
states there are two amending or revising processes for constitutional 
change. One of these processes is cumbersome and difficult of opera¬ 
tion, and should be reserved only for extraordinary occasions. The 
other, as it now exists in Illinois is also difficult of operation, but the 
simpler method of constitutional change should be relatively easy of 
operation and should be employed when it is necessary to make 
specific or relatively minor changes in the constitutional text. In 
framing amending clauses for a future constitution, particular atten¬ 
tion should be directed to the harmony of these two types of provi¬ 
sions. 

Recently there has been a tendency to use constitutional conven¬ 
tions for the purpose of proposing a series of specific constitutional 
amendments, and in several cases conventions have submitted a num¬ 
ber of proposed amendments rather than a revised constitution. The 
Ohio convention of 1913 submitted forty-two proposed amendments 
to the people. All constitutional conventions in New Hampshire since 
1793 have submitted a series of proposals each of which might be 
separately accepted or rejected by the voters. The Massachusetts con¬ 
ventions of 1830, 1853 and 1917-19, each submitted a series of pro- 



198 


posed amendments. The convention of 1917-19 submitted twenty-two 
amendments all of which were adopted. A convention continues to 
be needed, however, for the periodical re-examination of a constitu¬ 
tion, and if the changes to be recommended are numerous, those not 
of a controversial character may more properly be submitted in the 
form of a revised constitution, for to submit each change separately 
(when the matter is one over which there is no controversy) is to 
burden the voter unnecessarily. 

Attention should also be called to the fact that the type of amend¬ 
ing clause to be placed in a constitution depends to a large extent upon 
the type of constitution which is to be adopted. Detail in a consti¬ 
tution is undesirable, but detail in a constitution is all the more unde¬ 
sirable if it is coupled with an amending clause which makes the 
amendment of such detail substantially impossible. 

It is difficult to indicate constitutional provisions from other states 
which are satisfactory for adoption in Illinois, and this difficulty is 
accentuated by the fact that no provision can be suggested as de¬ 
sirable unless it is first known what type of constitution is to be in 
existence, and how much detail is likely to be in such a constitution. 
The New York and Michigan plans with respect to a constitutional 
convention have distinct advantages, for in many states difficulties 
have presented themselves through making the assembling a con¬ 
stitutional convention dependent upon legislative action. 

In an appendix to this study are printed the rejected amendments 
of 1892 and 1894, the proposed Chicago Bar Association amendment 
to the amending clause, the text of the public policy questions of No¬ 
vember, 1919, the text of a proposal by the Chicago Woman’s Club, 
and the full text of the amending clause of the Michigan constitution. 

The appendix also includes a tentative draft of a plan for the 
combination of legislative proposal and popular initiation of amend¬ 
ments. This draft combines elements of rejected proposals in Wis¬ 
consin and Illinois, and is presented merely in order that the various 
phases of the subject may be put in concrete form. For the indirect 
initiation of constitutional amendments, the Wisconsin plan proceeds 
upon the assumption that there will be no difficulty about introducing 
a proposed amendment in the general assembly. A petition for the 
introduction of a proposed amendment seems unnecessary under such 
a plan, although, if it were desired, the two methods of proposal could 
be adopted. Other types of the initiative in use for the proposal of 
constitutional amendments will be found in the appendix to Bulletin 
No. 2 on the initiative, referendum and recall. 



APPENDIX. 


1. The Illinois Constitution of 1870, Article XIV: 

Sec. 1. Whenever two-thirds of the members of each house of 
the General Assembly shall, by a vote entered upon the journals 
thereof, concur that a convention is necessary to revise, alter or 
amend the Constitution, the question shall be submitted to the electors 
at the next general election. If a majority voting at the election vote 
for a convention, the General Assembly shall, at the next session, pro¬ 
vide for a convention, to consist of double the number of members 
of the Senate, to be elected in the same manner, at the same places 
and in the same districts. The General Assembly shall, in the Act 
calling the convention, designate the day, hour and place of its 
meeting, fix the pay of its members and officers, and provide for 
the payment of the same, together with the expenses necessarily in¬ 
curred by the convention in the performance of its duties. Before pro¬ 
ceeding, the members shall take an oath to support the Constitution 
of the United States and the State of Illinois, and to faithfully dis¬ 
charge their duties as members of the convention. The qualification of 
members shall be the same as that of members of the Senate, and 
vacancies occurring shall be filled in the manner provided for filling 
vacancies in the General Assembly. Said convention shall meet within 
three months after such election and prepare such revision, alteration 
or amendments of the Constitution as shall be deemed necessary, which 
shall be submitted to the electors for their ratification or rejection at 
an election appointed by the convention for that jnirpose, not less than 
two or more than six months after the adjournment thereof; and un¬ 
less so submitted and approved by a majority of the electors voting 
at the election, no such revision, alteration or amendments shall take 
effect. 

Sec. 2. Amendments to this Constitution may be proposed in 
either house of the General Assembly, and if the same shall be voted 
for by two-thirds of all the members elected to each of the two houses, 
such proposed amendments, together with the ayes and nays of each 
house thereon, shall be entered in full on their res])ective journals, 
and said amendments shall be submitted to the electors of this State 
for adoption or rejection, at the next election of members of the 
General Assembly, in such manner as may be prescribed by law. The 
proposed amendments shall be published in full at least three months 
preceding the election, and if a majority of the electors voting at 
said election shall vote for the proposed amendments, they shall be¬ 
come a part of this Constitution. But the General Assembly shall 
have no power to propose amendments to more than one article 
of this Constitution at the same session nor to the same article oftener 
than once in four years. 





200 


2. Chicago Bar Association Amendment: 

Amendments to this Constitution may be proposed in either 
house of the General Assembly, and if the same shall be voted for 
by two-thirds of all the members elected to each of the two houses, 
such proposed amendments, together with the ayes and nays of each 
house thereon, shall be entered in full on their respective journals; 
and said amendments shall be submitted to the electors of this state 
for adoption or rejection, at the next election of members of the 
General Assembly in such manner as may be prescribed by law. 
The proposed amendments shall be published in full at least three 
months preceding the election, and if a majority of the electors voting 
at said election shall vote for the proposed amendments, they shall 
become a part of this constitution. But the General Assembly shall 
have no power to propose amendments to more than five articles of 
the constitution at the same session. 


3. Public Policy Questions, Nos. 1 and 2, submitted to the electors 
November 4, 1919: 

“Question No. 1—Shall the members of the Fifth Constitutional 
Convention be instructed to submit a proposal for the Initiative and 
Referendum; the term Initiative as herein used, meaning the power 
to bring proposed laws and Constitutional Amendments to popular 
vote, at any regular election, by petition of 100,000 electors at large, 
all measures so submitted to become laws when approved by a ma¬ 
jority of those voting thereon; the term Referendum, as herein used, 
meaning the power to suspend specified act or acts of the legislature, 
by petition of 50,000 electors at large, until such act or acts shall 
have been referred to popular vote and approved by a majority ol 
those voting thereon; said powers of the Initiative and Referendum 
also to be understood as being extended by the Constitution to the 
electors of every municipality and other political subdivision or dis¬ 
trict of the State, and to apply to all local, special and municipal 
legislation, in or for their respective municipalities and sub-divisions 
or districts? 

Question No. 2—Shall the members of the Fifth Constitutional 
Convention be instructed to submit the proposal for the Initiative 
and Referendum, as defined in Question No. 1, for a separate vote, 
in such manner that said proposal, if approved by a luajority of those 
voting thereon, shall take effect, either as part of a new constitution 
or as an amendment of Article 4, Section 1, of the present constitu¬ 
tion T’ 


4. Proposal of the Chicago Woman’s Clubd 

“1. Whenever [two-thirds] (a majority) of the members of each 
house of the General Assembly shall, by a vote entered upon the 

1 Words in present Article XIV to be deleted are in brackets. Words to be 
Inserted are in parentheses. 




201 


journals thereof, concur that a convention is necessary to revise, alter, 
or amend the Constitution, the question shall be submitted to the 
electors at the next general election. If a majority voting [at the 
election] (thereon) vote for a convention, the General Assembly shall, 
at the next session, provide for a convention, to consist of [double] the 
(same) number of members [of] (as) the Senate, to be elected [in the 
same manner] (at the same time), at the same places, and in the same 
districts. The General Assembly shall, in the Act calling the con¬ 
vention, designate the day, hour, and place of its meeting, fix the 
pay of its members and officers, and provide for the payment of the 
same, together with the expenses necessarily incurred by the con¬ 
vention in the performance of its duties. Before proceeding, the- 
members shall take an oath to support the Constitution of the United 
States and the State of Illinois, and to faithfully discharge their 
duties as members of the convention. The qualification of members 
shall be the same as that of members of the Senate, and vacancies 
occurring shall be filled in the manner provided for filling vacancies 
in the General Assembly. Said convention shall meet within three 
months after such election and prepare such revision, alteration, or 
amendments of the Constitution as shall be deemed necessary (which 
shall be published by the Secretary of State in full at least three 
months before the election at which they are to be voted upon.) 
[which] (They) shall be submitted to the electors for their ratification 
or rejection at an election appointed by the convention for that purpose, 
not less than two or more than six months after the adjournment 
thereof; and [unless] (each such revision, alteration, or amendment) 
so submitted and approved byj a majority of the electors voting 
[at the election, no such revision, alteration or amendments shall take 
effect.] (thereon, shall become a part of this constitution). 

2. Amendments to this constitution may be proposed in either 
house of the General Assembly, and if the same shall be voted for 
by [two-thirds] (a majority) of all the members elected to each of the 
two houses, such proposed amendments, together with the ayes and 
nays of each house thereon, shall be entered in full on their respective 
journals, and said amendments shall be submitted to the electors of this 
state for adoption or rejection, at the next election of members of the 
General Assembly, in such manner as may be prescribed by law. The 
proposed amendments shall be published (by the Secretary of State) 
in full at least three months preceding the election, and if a majority 
of the electors voting [at said election] (on any amendment) shall 
vote for [the proposed] (that) amendment, [they] (it) shall become a 
part of this constitution. But the General Assembly shall have no 
power to propose amendments [to more than one article of this con¬ 
stitution at the same session nor] to the same article oftener than once 
in four years. 

(3. Amendments to this constitution may also be proposed by pe¬ 
tition of one-tenth of the qualified voters of this State. Every such 
petition shall include the full text of the amendment so proposed and 
be signed by at least one-tenth as many qualified voters of the State 
as voted at the preceding general election for State Treasurer. In- 



202 


itiative petitions ])roposing an amendment to this constitution shall be 
filed with the Secretar}^ of State at least four months before the elec¬ 
tion of memljers of the General Assembly at which election such 
proposed amendment is to be voted upon. Upon receipt of such 
petition by the Secretary of State, he shall canvass the same to ascer¬ 
tain if such petition has been signed by the requisite number of quali¬ 
fied electors, and if the same has been so signed, the proposed amend¬ 
ment shall be published by the Secretary of State in full at least three 
months preceding the election and submitted to the electors of this 
State for adoption or rejection, and if a majority of the electors voting 
on such an amendment, shall vote for that amendment, it shall become 
a part of this constitution.)” 


5. Tentative draft of combination of the initiative and the legislative 

proposal of amendments:^ 

Section 1. At the general election to be held in the year ipsS, 
and every twentieth year thereafter, and also at such times as the 
General Assembly, by a vote of two-thirds of all the members elected 
to each of the two houses, with the yeas and nays of each house en¬ 
tered upon the journals thereof, shall provide, the question of hold¬ 
ing a convention to revise, alter or amend the constitution shall be sub¬ 
mitted to the electors of the state. A convention shall be held if a ma¬ 
jority voting upon the question vote for a convention, provided such 
majority be not less than one-third of the total number voting at the 
election if it is a general election, or if it is a special election provided 
such majority be not less than one-third of the vote cast at the last pre¬ 
ceding general election. If the electors shall decide in favor of a con¬ 
vention, the General Assembly shall at the next session provide for a 
convention to consist of double the number of members of the Senate, 
to be elected at the same places and in the same districts. The Gen¬ 
eral Assembly shall, in the act calling the convention, designate the 
day, hour and place of its meeting, fix the pay of its members, and pro¬ 
vide for the payment of the same together with the expenses neces¬ 
sarily incurred by the convention in the performance of its duties. Be¬ 
fore proceeding, the members shall take an oath to support the con¬ 
stitutions of the United States and of the State of Illinois, and to dis¬ 
charge faithfully their duties as members of the convention. The 
qualifications of members shall be the same as that of members of the 
Senate, and vacancies occurring shall be filled in the manner provided 
for filling vacancies in the General Assembly. Said convention shall 
meet within three months after such election, and prepare such revi¬ 
sion, alteration or amendments of the constitution as shall be deemed 
necessary, which shall be published in full within two weeks after the 
adjournment of the convention and shall be submitted to the electors 
for their ratification or rejection at an election appointed by the con¬ 
vention for that purpose not less than two nor more than six months 

2 New matter is italicized. That not italicized is present language of Illinois 
Constitution. 






203 


after the adjournment thereof. Such revision, alteration, or amend¬ 
ments shall be adopted upon approval by a majority of the electors 
voting thereon, provided such majority be not less than one-third of 
the total number voting at the election if it is a general election or if 
it is a special election provided such majority be not less than one-third 
of the total vote cast at the last preceding general election; and any 
revision, alteration or amendments so adopted shall take effect on the 
first day of January next after such approval, unless another date 
shall be specified in the revision, alteration or amendment itself. 

Section 2. Amendments to this constitution may be proposed in 
either house of the General Assembly, and if the same shall be voted 
for by two-thirds of all the members elected to each of the two houses, 
such proposed amendments, together with the yeas and nays of each 
house thereon shall be entered in full on their respective journals. 

A petition signed by qualified electors of the state equal to ten 
percentum of the votes cast for governor at the last preceding election 
(not more than one-half of whom shall be residents of any one county) 
may require the submission to the people of any amendment proposed 
in either house of the general assembly, either in its original form or 
with any amendments proposed in either house. However if such a 
proposed amendment shall be placed upon its final passage in each 
house and fails in either house to receive the affirmative votes of one- 
third of all members elected to such house it shall not be so submitted. 
The petition shall be filed with the secretary of state zuithin 

six months after the adjournment of the General Assembly, 

and shall contain the full text of the proposed amendments 

whose submission is required. Petitions shall be verified by 

affidavits of those obtaining the signatures. The Governor, Attorney 
General and Secretary of State shall constitute a board to pass upo'n^ 
the sufficiency of petitions, and zvhen a petition is approved by them 
its sufficiency shall not be questioned in any court. A finding of the 
board that a petition is not sufficient may be reviewed upon a petition, 
for mandamus filed in the Supreme Court within thirty days. These 
provisions are self-e.vediting, but the General Assembly may enact* 
appropriate legislation regulating the verification of signatures, and 
other matters connected with the preparation and presentation of pe¬ 
titions. 

Amendments proposed cither by the General Assembly or as a\ 
result of popular petition in the manner provided above shall be sub¬ 
mitted to the electors of this state for adoption or rejection at the next 
general election, unless the General Assembly by a vote of two-thirds 
of all the members elected to each of the two houses shall order a 
special election for that purpose. The proposed amendments shall be 
submitted in such manner as may be prescribed by law, and shall be 
published in full at least three months preceding the election. If a 
majority of the electors voting thereon shall vote for the proposed 
amendments, they shall become a part of this constitution, provided 
such majority be not less than one-third of the total number voting at 
the election if it is a general election, or if it is a special election, pro-' 
vided such majority be not less than one-third of the total vote cast at 


204 


the last preceding general election. When two or more amendments 
are submitted at the same election they shall be so submitted as to en¬ 
able the electors to vote upon each amendment separately. Every 
amendment shall take effect on the first day of January next after its 
approval, unless another date shall be specified in the amendment it¬ 
self. No amendment sidhnitted to and approved by the people shall 
be held invalid if in its proposal and adoption there has been substan¬ 
tial compliance with the terms of this section. 


6. Constitution of Michigan, Article XVII: 

Section 1. Any amendment or amendments to this constitution 
may be proposed in the senate or house of representatives. If the 
same shall be agreed to by two-thirds of the members elected to each 
house, such amendment or amendments shall be entered on the jour¬ 
nals, respectively, with the yeas and nays taken thereon; and the 
same shall be submitted to the electors at the next spring or autumn 
election thereafter, as the legislature shall direct; and, if a majority 
of electors qualified to vote for members of the legislature voting 
thereon shall ratify and approve such amendment or amendments, the 
same shall become part of the constitution. 

Sec. 2. Amendments may also be proposed to this constitution 
by petition of the qualified voters of this state. Every such petition 
shall include the full text of the amendment so proposed and be signed 
by not less than ten per cent of the legal voters of the state. Initiative 
petitions proposing an amendment to this constitution shall be filed 
with the secretary of state at least four months before the election 
at which such proposed amendment is to be voted upon. Upon receipt 
of such petition! by the secretary of state, he shall canvass ^he 
same to ascertain if such petition has been signed by the requisite num¬ 
ber of qualified electors, and if the same has been so signed, the 
proposed amendment shall be submitted to the electors at the next 
regular election at which any state officer is to be elected. Any con¬ 
stitutional amendment initiated by the people as herein provided, shall 
take effect and become a part of the constitution if the same shall 
be approved by a majority of the electors voting thereon and not 
otherwise. Every amendment shall take effect thirty days after the 
election at which it is approved. The total number of votes cast for 
governor at the regular election last preceding the filing of any peti¬ 
tion proposing an amendment to the constitution, shall be the- basis 
upon which the number of legal voters necessary to sign such a peti¬ 
tion shall be computed. The secretary of state shall submit all pro¬ 
posed amendments to the constitution initiated by the people for the 
adoption or rejection in compliance herewith. The petition shall 
consist of sheets in such form and having printed or written at the 
top thereof such heading as shall be designated or prescribed by 
the Secretary of State. Such petition shall be signed by qualified vot¬ 
ers in person only, with the residence address of such persons and 
the date of signing the same. To each of such petitions, which may 


205 


consist of one or more sheets, shall be attached the affidavit of the 
elector circulating the same, stating that each signature thereto is 
the genuine signature of the person signing the same, and that to the 
best knowledge and belief of the affiant each person signing the peti¬ 
tion was at the time of signing a qualified elector. Such petition so 
verified shall be prima facie evidence that the signatures thereon are 
genuine, and that the persons signing the same are qualified electors. 
The text of all amendments to be submitted shall be published as con¬ 
stitutional amendments are now required to be published. (Amend¬ 
ment ratified at April election, 1913). 

Sec. 3. All proposed amendments to the constitution submitted 
to the electors shall be published in full, with any existing provisions 
of the constitution which would be altered or abrogated thereby, and 
a copy thereof shall be posted at each registration and election place. 
Proposed amendments shall also be printed together with any other 
special questions to be submitted at such election in full on a single 
ballot separate from the ballot containing the names of the candidates 
or nominees for public office. (Amendment ratified at November 
election, 1918). 

Sec. 4. At the general election to be held in- the year nineteen 
hundred twenty-six, in each sixteenth year thereafter and at such 
other times as may be provided by law, the question of a general 
revision of the constitution shall be submitted to the electors qualified 
to vote for members of the legislature. In case a majority of such 
electors voting at such election shall decide in favor of a convention 
for such purpose, at the next biennial spring election the electors of 
each senatorial district of the state as then organized shall elect three 
delegates. The delegates so elected shall convene at the state capitol 
on the first Tuesday in September next succeeding such election, and 
shall continue their sessions until the business of the convention shall 
be completed. A majority of the delegates elected shall constitute a 
quorum for the transaction of business. The convention shall choose 
its own officers, determine the rules of its proceedings and judge of 
the qualifications, elections and returns of its members. In case of 
a .vacancy by death, resignation or otherwise, of any delegate, such 
vacancy shall be filled by appointment by the governor of a qualified 
resident of the same district. The convention shall have power to 
appoint such officers, employes and assistants as it may deem neces¬ 
sary and to fix their compensation, and to provide for the printing 
and distribution of its documents, journals and proceedings. Each 
delegate shall receive for his services the sum of one thousand 
dollars and the same mileage as shall then be payable to members 
of the legislature, but such compensation may be increased by law. 
No proposed constitution or amendment adopted by such convention 
shall be submitted to the electors for approval as hereinafter provided 
unless by the assent of a majority of all the delegates elected to the 
convention, the yeas and nays being entered on the journal. Any pro¬ 
posed constitution or amendments adopted by such convention shall be 
submitted to the qualified electors in the manner provided by such 
convention on the first Monday in April following the final adjourn- 


206 


ment of the convention; but, in case an interval of at least ninety 
days shall not intervene between such final adjournment and the date 
of such election, then it shall be submitted at the next general election. 
Upon the approval of such constitution or amendments by a majority 
of the qualified electors voting thereon such constitution or amend¬ 
ments shall take effect on the first day of January following the 
approval thereof. 


INDEX. 


AMENDMENTS 

legislative action in submitting, 186-187. 
limitations upon proposal of, 175, 185, 186. 
method of in Illinois, 174. 
method in other states, 183-185. 
to Illinois constitution, 180. 
popular votes upon, 177, 188, 193-195. 
possible changes with respect to, in Illinois, 
181-182. 

proposal by initiative, 172, 187, 195. 
BALLOT 

influence of form upon popular vote, 177, 

194- 195. 

CONSTITUTION 

change of, two methods, 171, 179-180, 

197-198. 

details jn, 172, 174, 195-197. 

relation between constitution and statutes, 

195- 197. 

CONVENTIONS, CONSTITUTIONAL 
in Illinois, 179. 
in Massachusetts, 197. 
in Ohio, 197. 

in New Hampshire, 171, 197. 
independence of legislatures, 192, 198. 
proposals of specific amendments by, 197-198. 
summary of convention methods in other 
states, 190-192. 

DETAILS 

in constitution, 172, 174, 195-197. 
ELECTIONS 

popular votes upon constitutional questions, 
193-195. 

voting upon amendments in, 177, 188. 
with respect to constitutional conventions, 
190-192. 

GENERAL ASSEMBLY 
proposal of amendments by, 176. 

ILLINOIS 

constitutional conventions in, 179. 
difficulty of amendment in, 171, 174. 
historical development of amending clause, 
173-174. 


legislative proposal of amendments, 176. 
limitation upon amendments in, 175. 
possible changes in amending article 181- 
182, 197-198. 

relation between two methods of constitu¬ 
tional alteration, 171, 179, 197. 
use of amending clause since 1870, 180. 

INITIATIVE 

for liolding of conventions, 192. 
use for proposal of amendments, 172, 187, 
195. 

LEGISLATURE 

proposal of amendments by, 172, 176, 186. 
LIMITATIONS 

upon proposal of amendments, 175, 185, 186. 
MASSACHUSETTS, 

constitutional convention of 1917-19, 197-198. 
NEW HAMPSHIRE, 

constitutional conventions in, 171, 197. 

OHIO 

constitutional convention of 1912, 197. 

PARTY ENDORSEMENTS, 177, 179, 194-195. 

POPULAR VOTE 
upon amendments, 188. 
u])on amendments in Illinois, 177. 
upon constitutional questions, 193-195. 
upon lU'oposals of constitutional conventions, 
190-192. 

STATUTES 

relation to constitution, 195-197. 

VOTE 

upon amendments in Illinois, 177. 
upon constitutional questions, 188, 193-195. 
Upon proposals of constitutional conven¬ 
tions, 190-192. 




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